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Energy disputes - procedural commercial/civil law in Chile

How do courts in your jurisdiction resolve competing clauses in multiple contracts relating to a single transaction, lease, licence or concession, with respect to choice of forum, choice of law or mode of dispute resolution?

The issue of conflict of laws or choice of forum can only arise in Chile if there is an international element surrounding the contract. In fact, although there is no constitutional prohibition for the contractual parties to elect the forum (exceptionally, the choice of a foreign forum is forbidden on matters relating to the extinction or forfeiture of mining property), article 5 of the Courts Organisation Code provides that any judicial matter arising within the Chilean territory shall be referred to the ordinary Chilean courts. It contains no provision regarding the election of a foreign forum when there is an international aspect involved.

Regarding international contracts agreed by public entities (the Chilean state or its organs, institutions or companies), Decree Law No. 2,349 recognises the validity of contract clauses extending jurisdiction to foreign courts if these contracts have been agreed with international institutions, organisations or foreign companies whose principal business seat is abroad.

Likewise, for private contracts with an international element the general rule regarding validity of contractual clauses extending jurisdiction is in article 318 of the Private International Law Code, ratified by Chile in 1934, which establishes that the competent court for all civil and commercial matters arising out of an international contract is that one the parties have expressly chosen, provided always that at least one of them is a national of the court’s country or has its domicile there, unless there is a national provision against it. Thus, our legal system recognises the parties’ autonomy to decide on the forum.

Are stepped and split dispute clauses common? Are they enforceable under the law of your jurisdiction?

In Chile, tiered or stepped escalation clauses are not uncommon in commercial contracts in general and energy contracts in particular, being just an expression of the legal principle in contract law of party autonomy or free will. As a general rule, parties will include in their contracts a more or less formal negotiation stage phase as a necessary step before recourse to any formal dispute resolution. Nevertheless, the enforceability of such clauses is largely left to the parties’ good faith, as there is not a legal mechanism to compel them to follow the process if one of the parties chooses to immediately trigger the dispute resolution mechanism of last resort, whether arbitration or ordinary courts, because any such contractual breach will in fact create a dispute that will in turn need to be resolved.

As for split dispute clauses, these are rather less common in Chile, although not unseen, particularly as ‘unilateral hybrid jurisdiction clauses’ granting the right to choose jurisdiction to one of the parties while the other contracting party only retains the ability to bring an action before a single jurisdiction.

How is expert evidence used in your courts? What are the rules on engagement and use of experts?

Expert evidence may be mandatory by law in some cases; it can be freely requested by the parties in others; or it can also be ordered by the court when it believes it to be convenient.

Courts can order for expert evidence to be provided at any stage during proceedings or even after proceedings have finished and before a decision has been made. The parties, on the contrary, must request any expert evidence they wish to provide at the appropriate opportunity prescribed by the law (evidence stage of trial or at a preliminary stage). Usually, expert evidence will be admitted by court when the correct and accurate appreciation of the facts at stake depends on knowledge of a particular art or science, which can only be provided to the court by an expert or a professional.

Chilean courts shall weigh expert evidence according to the rules of the ‘reasoned judgment’ standard, understood as a set of common sense and logic rules the judge must use to assess and ponder the evidence. It is a non-legal criterion that the judge shall use from the perspective of the average person with a prudent and objective attitude.

What interim and emergency relief may a court in your jurisdiction grant for energy disputes?

The Chilean Civil Procedure Code enables parties to apply for interim reliefs in any stage of trial, or even before the filing of the complaint. To grant interim reliefs, two requisites are always needed: the demonstrated plausibility of the relief sought and the existence of the emergency.

What is the enforcement process for foreign judgments and foreign arbitral awards in energy disputes in your jurisdiction?

For a foreign judgment or arbitral award to be enforceable in Chile, it is necessary to gain prior authorisation from the Chilean Supreme Court. This process is called ‘exequatur’.

The general rule regarding exequatur is reciprocity, meaning that in the absence of treaties governing the matter, foreign judicial decisions shall have in Chile the same enforceability afforded to Chilean judicial decisions in the corresponding jurisdictions.

In all other cases, foreign judicial decisions will have in Chile the same enforceability as if they would have been pronounced in Chile as long as the following conditions are met:

that they do not contain anything against Chilean laws, although the procedural rules to which the case would have had to comply under Chilean law will not be taken into account;

that they are not contrary to national jurisdiction;

that the party against whom the judicial decision is being invoked has been properly notified of the proceedings. Even so, evidence that such party was unable to defend himself or herself will be allowed; and

for such judicial decisions to be final according to the laws of the issuing country.

Regarding arbitral awards in particular, article 246 of the Chilean Procedural Code provides that the abovementioned rules are applicable to final judicial decisions issued by arbitral tribunals as long as the authenticity and efficacy of the award has been vetted or approved by a superior ordinary court of the country where the award was granted.

Alternative dispute resolution

Are there any arbitration institutions that specifically administer energy disputes in your jurisdiction?

Since 2004, Chile has had a specialised court called Panel of Experts, devoted to resolving disputes in the energy sector. The panel exercises its jurisdictions over three areas:

disputes arisen between the CDEC (the operator of electric systems) and the energy companies subject to the coordination of the operator;

matters in which the law requires the Panel of Experts to intervene, such as disputes resulting from the approval of the expansion plan for transmission infrastructure (high voltage power lines and substations); and

any conflict that energy companies decide to submit before the Panel of Experts regarding the application and interpretation of the electric law and its regulations.

On that basis, in the first two fields, the Panel of Experts acts as an ordinary court established by law for resolving energy disputes, whereas in the latter case, the Panel of Experts plays the role of an arbitration court.

Is there any general preference for litigation over arbitration or vice versa in the energy sector in your jurisdiction?

As we previously explained, energy disputes in the Chilean energy sector are resolved by the Panel of Experts, which plays the role of an ordinary court or arbitration entity, depending on the type of conflict.

Are statements made in settlement discussions (including mediation) confidential, discoverable or without prejudice?

Statements made in settlement discussions, as well as the settlements themselves, reached outside a courthouse or arbitration procedure, are treated as a regular contract between the parties. Therefore, they are admissible as evidence in court, notwithstanding the breach of the contract if a confidentiality clause was violated.

Moreover, if the statements are made within trial or within an arbitration, or if the settlement agreements are filed in front of a courthouse or an arbitrator, they are understood to be public.

Privacy and privilege

Are there any data protection, trade secret or other privacy issues for the purposes of e-disclosure/e-discovery in a proceeding?

Within a civil trial, parties are not entitled to request e-disclosure or e-discovery. During a Civil Procedure, parties may request the judge to order the exhibition of certain written or signed (including advance electronic signature) instruments in possession of the other party or of a third party. The approval of the exhibition request is subject to the decision of the court based on their direct relation and relevance for the resolution of the controversy and the judgment by the court that they are not considered private or secret.

Moreover, during a civil trial, parties may also request the exhibition of accounting books in possession of the other party. For this purpose, courts may grant the exhibition provided it is considered relevant for the preparation of the lawsuit or its direct relation and relevance with the resolution of the controversy, limited to the specific sections of the books that are considered relevant by the court.

What are the rules in your jurisdiction regarding attorney-client privilege and work product privileges?

There are legal and ethical obligations for lawyers regarding attorney-client privilege. According to our Civil Procedure Code, lawyers are exempt from the obligation to testify during a civil trial. This exemption covers only confidential facts that were communicated to the lawyer under consideration of his or her profession. There is no special protection under Chilean law to work product privileges.

The ethical obligation of confidentiality for attorneys is broader, and covers all the information that was provided to the lawyer by the client. It also includes a prohibition of disclosure to any third party and a duty to protect the information provided by his or her client, including the information revealed to her or his collaborators. Notwithstanding this, ethical obligations are only applicable to the members of the Chilean Bar Association and affiliation is not mandatory.

Jurisdiction

Must some energy disputes, as a matter of jurisdiction, first be heard before an administrative agency?

The different sanctions that the Superintendency of Electricity and Fuel (SEC) may issue to any of the companies under its supervision may be appealed before the SEC. Notwithstanding, this administrative appeal is not mandatory, giving the sanctioned party the right to appeal directly before the corresponding Court of Appeals. The administrative appeal, however, interrupts the statute of limitation of the jurisdictional appeal and its decision is also subject to appeal.